Assignment:
Reading the following chapter are given below is:
Administrative Rulemaking
What is Administrative Law
Outline
• Why we have administrative law statues: delegation and discretion
o Delegation
o Discretion
• Administrative decision-making
• Procedural and substantive review of administrative decision
• The development of US administrative law
Review and comment
Administrative law regulates public administration, "...it regulates how public administrative agencies do what they do and why, as well as their authority to do it" (p. 1). For example, the text example of the FDA's "rat hair list" which specifies the amount of rodent hair and other like type animal material is allowable in foods. How these rules get made, and their procedure for doing so, and the process for review is all part of the administrative regulation schemata.
Delegation and Discretion
Elected officials have the authority of their office - however, agencies and the employees making decisions on rules have not been elected. Yet, legislators delegate authority to public administrators for several reasons. For example, the enormity and scope of issues to be regulated makes it infeasible for legislative bodies to handle the workload.In addition, legislative bodies are not capable of handling these issues at the technical level and it may be politically advantageous to have the details worked out at the agency level.
A significant issue is "separation of powers" under our constitutional system - which says legislative such powers cannot be transferred to others. The answer has been to delegate authority under "an intelligible principle" in which an agency must conform to certain procedures than ensure constitutional protections, such as due process. Ultimately, Congress establishes broad policy objectives, relying on agencies to fill in the details.
Although the "intelligible principle" may be administratively challenging to implement in certain circumstances agencies have developed greater levels of "discretion" to meet the legislators' policy goals. However, too much discretion and abuse can occur - intentionally or not - and is a source of the courts concerns.
Administrative Decision-making
The Federal Administrative Procedure Act (APA) was enacted by Congress to prevent decisions that are "arbitrary and capricious" or that abuse discretion not in accordance with legislator's intent. The APA sets out rules and procedures for agencies to create rules that may be either formal or informal. Administrative decisions may also be retrospective, prospective or present tense.
Procedural and substantive review of administrative decisions
Agencies are governed by procedural rules and are subject to substantive review. This review can take place within the agency itself by agency heads, boards or commissions or administrative law judges. Also, the Office of Management and Budget plays a role, reviewing certain agency proposals, especially those with significant economic impact. Finally, judicial review of agency decisions is available regarding violations of procedures and rights. Ultimately, Congress itself can create new laws and or modify agency budgets to change agency behavior.
Development of US administrative law
The "administrative state" term resulted from the growth of administrative agencies and the volume of policy creation and implementation for which they were responsible. Industrialization, urbanization, the Depression of the 30's, the "New Deal Era," World War II, etc., saw tremendous growth in agency activity to maintain societal functioning in an ever increasingly complex society. "Vesting rulemaking and adjudicatory functions in administrative agencies were the nation's response to the ever-expanding scope of complexity of governing" (p. 12). The basic premise underlying the APA is that agency actions should be informed by legislative values, follow procedures to ensure fairness and transparency, should be fair.
Discussion Questions
Question. If you were in charge of determining the allowable defects levels in the "Rat hair list," how would you define "unavoidable" defects - in terms of economics, technology, or both? Are there other considerations you would add?
Agencies like the FDA are tasked with implementing rules that are fair and safe. The economics and technology debate will always be a factor insofar as creating unavoidable defects. The cost of no defects may defeat the purpose of allowing certain businesses to produce products society needs and wants if the rule is too burdensome that no business could survive. It seems that the balance agencies have strived to obtain with regard to these completing interests have served society well. A consideration that I would add is what are specific guidelines that could be established to assist agencies and businesses better navigate this delicate balance.